CASEWORK RELEVANT TO THE GORDONBUSH WIND FARM APPLICATION

1. LOCATION IN RELATION TO DESIGNATED AREAS

1.1 The proposed wind farm site adjoins a multi-designated area (Ramsar, SPA, SAC, SSSI) important for its bird populations (see Annex 1 above), and its peatland habitat and associated flora and fauna. Infrastructural development is proposed only 250m from the SPA boundary.

1.2 In making its decision on this application the Scottish Executive must therefore take into account the provisions of both the EC Habitats and Birds Directives (92/43/EEC and 79/409/EEC) and its own more detailed guidance updating Scottish Office Circular No. 6/1995, published in June 2000.

2. RELEVANT CASEWORK

2.1 In December 2002 the Commission announced it was taking legal action against six Member States in respect of perceived breaches of the Birds and Habitats Directives. One of these involves a case in Germany similar in many ways to the Gordonbush proposal. The European Court of Justice has sent a 'Reasoned Opinion' (effectively a warning) to the German Government over its intention to permit the construction of a wind farm at Wybelsumer Polder in Lower Saxony. This lies within an area of ornithological importance, only parts of which have been formally designated as an SPA. The Commision is concerned that the project will have a negative impact on important bird habitats, and that safeguards set down in the Birds and Habitats Directives have not been respected.

2.2 Given the emphasis on the 'precautionary principle' in the Directives and the need to avoid damage to an interest protected within a European-designated site unless there are "imperative reasons of overriding public interest'\ the granting of planning permission in the Gordonbush case would seem to be in clear breach of both Directives, particularly as the Developers are unable to provide satisfactory evidence that there would be no significant negative impact on the adjacent SPA

2.3 A ruling by the European Court of Justice on 30 January 2002 in respect of developments affecting the breeding beaches of turtles on the Greek island of Zakynthos included a definition of the term 'deliberate' (in relation to disturbance) in the Habitats Directive which is also relevant to the Birds Directive. Article 5a of the latter prohibits the deliberate killing of wild birds and 5d the deliberate disturbance of birds during the breeding season. The ruling extends the meaning of 'deliberate' to include awareness of the likelihood of such negative effects. In other words, the authorities making the decision in the knowledge that protected birds would in all probability be killed or disturbed would themselves be in breach of European law.

2.4 In the case of the Gordonbush proposal it is clear from the Developers' Environmental Survey and Supplementary Information that significant numbers of Golden Plovers would almost certainly be killed by the turbines and that other important species, including Golden Eagle, would be displaced and vulnerable to collision. The Developers admit that avoiding or phasing construction work in the breeding season is not feasible but the threat to scheduled species is not in any case confined to the breeding season (see, for example, paragraphs 2.3 and 3.3 of Annex 1 above).

April 2004